Illinois Anti-Fracking Activists Now Trying Litigation to Stall Shale Development

Anti-fracking activists used legislative limbo to delay shale development in the Land of Lincoln for 500-plus days.  Now they’re changing up their desperation dance, hoping litigation limbo will cause further delay.

The first of what is sure to be a slew of frivolous lawsuits was filed recently in Madison County by a group that includes Southern Illinoisans Against Fracturing Our Environment (SAFE). The lawsuit seeks a preliminary injunction preventing publication of the Illinois Department of Natural Resources’ (IDNR) long-awaited hydraulic fracturing regulatory rules, essentially asking for a re-do of the rulemaking process that took more than a year-and-a-half to complete.

In a 2 ½ hour hearing Tuesday, attorneys Penni Livingston and Vito Mastrangelo argued that the IDNR’s rules were not adopted with proper procedures. They argued “irreparable damage” was caused by limiting the public’s input to “make the rules better,” calling for the rules to be invalidated. “They [IDNR] did not do what they were supposed to do and now need to go back and do it right,” Livingston said.

Fortunately, Madison County Circuit Court Judge Barbara Crowder rejected the request for an injunction, basing her decision on the fact “irreparable damage” could not be proven for the obvious reason that there is no irreparable damage to prove. First of all, permits won’t even be issued for at least two months and drilling is still months away. And, obviously, the argument that the public was not adequately involved in the rule-making process is so ridiculous that it’s downright ironic.

The lawsuit will move forward, however, as a hearing on the plaintiff’s request that the rules be invalidated due to the IDNR’s alleged procedural rule-making violations will be scheduled at a later date.

Fortunately, activists have little chance of success for a number of reasons. As IDNR attorney Joshua Ratz argued on Tuesday, technicalities regarding rule-making procedure cannot be the grounds to overturn rules. Ratz also argued that there is no precedent in case law for an injunction being granted for such alleged reasons.

Most the complaints listed in the lawsuit are completely without base. Let’s take a look:

Activist Claim: There was no public consultation in the rule-making process

FACT: This is a ludicrous accusation considering there were five public hearings and more than 30,000 comments submitted to the IDNR. Granted, the latter was the result of a manipulative cut-and-paste campaign conducted by a relatively small amount of people, although some activists continue to push the false narrative that “30,000 people” submitted comments.

Despite exaggerated estimates on exactly how many people commented, it is clear that those who oppose fracking had ample opportunity to make their voices heard and clearly took advantage of that opportunity. So how can activists now claim there was no public consultation?

Activist Claim: The IDNR did not give ample notice of public hearings

FACT: The attendance suggests otherwise. Activists bragged about unprecedented turnout at said hearings, boasting that there was such a large crowd at the Chicago hearing that people had to be turned away because the venue had been filled to capacity. They are now complaining that people should not have been turned away as result of the capacity crowd.

Which begs the question: If the room was filled to capacity, where in the world were these people supposed to go? What choice did the IDNR have other than turning people away?

Activist Claim: The public was “left scrambling” to review and comment on rules before they were published

Again, activist boasting about more than 30,000 comments being submitted to the IDNR would suggest that there was plenty of time to review and comment on the first set of rules issued by the IDNR. There was then more than two months to contact JCAR members following the IDNR’s release of its second draft of rules on Aug. 29. A third commenting period was never promised after the final set of rules was released.

Activist Claim: The IDNR failed to use “scientific studies” in drafting its first set of rules

: There is truth to this claim. The IDNR openly concedes that scientific studies – as defined by the activists – were not used in drafting the first set of rules. But that happens to be a moot point.  There is no language in state law that requires use of specific studies in the rule-making process and the fact that studies were used to draft the second set of rules effectively addresses the activists’ concerns.

Activist Claim: No experts were available to answer questions at hearings

FACT: The IDNR Director of Oil and Gas and other officials were at the hearings and the IDNR did answer all of the public’s questions, as required by law. It’s just that all those questions weren’t necessarily answered at the hearings themselves, which is not required by law. And for good reason. As Ratz emphasized during Tuesday’s hearing, it simply is not reasonable to have unlimited number of people and questions at hearings.

Activist Claim: IDNR’s delay in publishing transcripts of public hearings prejudiced the public’s ability to evaluate IDNR’s rulemaking

FACT: There is no legal requirement for public hearing transcripts to be published in a timely fashion. These are five of the nine complaints that members of SAFE and others have claimed justify starting the entire rule-writing process over. And there are even more ridiculous claims appearing in the press that will likely be used as justification of future litigation.

Activists have complained that the Nov. 6 JCAR meeting in which the committee gave final approval to IDNR’s regulatory rules was conducted “completely in secret.” That’s an interesting accusation considering a reporter from the Chicago Tribune was present, as was a representative from the Natural Resources Defense Council and several others from the environmental community.

Fact is, the meeting was completely open, and both industry and environmentalist representatives were welcome to contact members of JCAR in the two-plus months from the time the IDNR’s second draft of rules was released and the Nov. 6 hearing.

JCAR evaluated comments from both sides and made its recommended rule changes to IDNR. IDNR then submitted its final set of rules to JCAR, which issued a unanimous vote of no objection just prior to a drop-dead Nov. 15 deadline that would have started the process all over again.

But activists refuse to accept this reality, claiming JCAR “gutted” the rules after closed-door meetings with industry leaders in which they were shut out. That is why JCAR will likely be their next target.

But it’s really no surprise. Considering activists are suing outgoing Illinois Gov. Pat Quinn and IDNR director Marc Miller — two individuals whom most objective observers would agree are not exactly industry apologists — there’s no telling who they’ll try to sue next.

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